Employment – Compensation & Benefits

Application of Prevailing Wage Law to Public Works Project of Charter City. Does California’s prevailing wage law (Lab. Code, § 1720 et seq.) apply to a charter city when it contracts to construct public works projects with municipal funds? State Building & Construction Trades Council of California v. City of Vista, S173586, formerly 173 Cal.App.4th 567, review granted 8/19/09.

Private Right of Action For Gratuities. Does Labor Code § 351, which prohibits employers from taking “any gratuity or part thereof that is paid, given to, or left for an employee by a patron,” create a private right of action for employees? Lu v. Hawaiian Garden Casinos, S171442, formerly 170 Cal.App.4th 466, mod. 170 Cal.App.4th 1370a, review granted 4/27/09. Update 6/24/09: Review granted in Grodensky v. Artichoke Joe’s Casino, S172237, formerly 171 Cal.App.4th 1399, with briefing deferred pending the decision in Lu.

Recovery of Unpaid Wages. When a worker files an action to recover penalties for late payment of final wages under Labor Code § 203, but does not concurrently seek to recover any other unpaid wages, is the statute of limitations the one-year statute for penalties under CCP § 340(a), or the three-year statute for unpaid wages under Labor Code § 202? Also, can penalties under Labor Code § 203 be recovered as restitution in an Unfair Competition Law action, Bus. & Prof. Code § 17203? Pineda v. Bank of America, N.A., S170758, formerly 170 Cal.App.4th 388, review granted 4/20/09.

Choice of Law – Out-of-State Workers in California. Request under CRC 8.548 from the Ninth Circuit: (1) Does the Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week? (2) Does Bus. & Prof. Code § 17200, et seq., apply to such overtime work? (3) Does § 17200, et seq. apply to overtime work performed outside of California for a California-based employer by out-of-state plaintiffs if the employer failed to comply with the overtime provisions of the federal Fair Labor Standards Act, 29 U.S.C. § 207 et seq.? Sullivan v. Oracle Corporation, S170577, 557 F.3d 979, request for certification granted 4/20/09.

Employer’s Duty re Meal And Rest Breaks to Hourly Workers. What is an employer’s duty to provide meal and lunch breaks to hourly employees? Brinker Restaurant Corp. v. Sup. Ct., S166350, formerly 165 Cal.App.4th 25, review granted 10/29/08. Update 1/12/09: Review granted in Brinkley v. Public Storage, Inc., S168806, formerly 167 Cal.App.4th 1278, with briefing deferred pending the decision in Brinker. Update 5/11/09: Review granted in Bradley v. Networkers International LLC, S171257, with briefing deferred pending the decision in Brinker.

Using Sick Time to Care for Family. (1) Does Labor Code § 233, which mandates that employees be allowed to use a portion of “accrued and available sick leave” to care for sick family members, apply to employer plans in which employees do not periodically accrue a certain number of paid sick days but are paid for qualifying absences due to illness? (2) Does Labor Code § 234, which prohibits employers from disciplining employees for using sick leave to care for sick family members, prohibit an employer from disciplining an employee who takes such “kin care” leave if the employer would have the right to discipline the employee for taking time off for the employee’s own illness or injury? McCarther v. Pacific Telesis Group, S164692, formerly 163 Cal.App.4th 176, review granted 8/18/08. Update 12/9/09: Cause argued and submitted. Update 2/18/10: Opinion issued.

Are Claims Adjusters Entitled to Overtime? Do claims adjusters employed by insurance companies fall within the administrative exemption (8 Cal. Code Regs § 11040) to the requirement that employees are entitled to overtime compensation? Harris v. Sup. Ct. (Liberty Mutual Insurance), S156555, formerly 154 Cal.App.4th 164, review granted 11/26/07.

Personal Liability of Officers and Directors For Statutory Wage Violations. Can the officers and directors of a corporate employer personally be held civilly liable for causing the corporation to violate the statutory duty to pay minimum and overtime minimum wages, either on the ground such officers and directors fall within the definition of “employer” in Industrial Welfare Commission Wage Order 9 or on another basis? Martinez v. Combs, S121552, B161773, (nonpublished opinion) review granted 3/3/04. Note: The court initially ordered briefing deferred pending decision in Reynolds v. Bement, S115823, which was later decided on 9/7/05, 36 Cal.4th 1075. Update 2/3/10: Oral argument scheduled for 3/2/10.

Employment – Other

Preemption of local laws requiring new grocery store owner to retain employees. Two issues are presented: Do California food safety laws preempt a local ordinance that requires a grocery store, after a change of ownership, to retain the employees of the former owner for a 90-day transition period? Do federal labor laws do so? California Grocers Assn. v. City of Los Angeles, S176099, formerly 176 Cal.App.4th 51, review granted 11/10/09.

Enforceability of Mandatory Arbitration Agreement in Light of Proceedings by Labor Commissioner. Two issues are presented: (1) Can a mandatory employment arbitration agreement be enforced prior to the conclusion of an administrative proceeding conducted by the Labor Commissioner concerning an employee’s statutory wage claim? (2) Was the Labor Commissioner’s jurisdiction over employee’s statutory wage claim divested by the Federal Arbitration Act under Preston v. Ferrer (2008) __ U.S. __, 128 S.Ct. 978, 169 L.Ed.2d 917? Sonic-Calabasas A, Inc. v. Moreno, S174475, formerly 174 Cal.App.4th 546, review granted 9/9/09.

Judicial Review of Decisions Under Meyers-Milias-Brown Act and Applicability of Act. (1) Is the decision by the Public Employee Relations Board not to issue an unfair labor practices complaint under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.) subject to judicial review? (2) Is a decision to lay off firefighters for fiscal reasons a matter that is subject to collective bargaining under the Act? International Assn. of Firefighters v. Public Employee Relations Bd., S172377, formerly 172 Cal.App.4th 265, review granted 7/8/09.

Workers’ Compensation - Apportionment to Non-Industrial Causes. In determining a worker’s permanent disability award, should the worker’s inability to participate in vocational rehabilitation due to nonindustrial causes be apportioned, thus reducing the responsibility of the employer? Hertz Corp. v. Workers’ Comp. Appeals Bd., S169313, formerly 169 Cal.App.4th 232, review granted 3/23/09.

Exhaustion of Remedies to Bring Whistleblower Claim. (1) Must an employee of the California State University exhaust administrative and judicial remedies with respect to a challenged administrative decision in order to bring a claim under the California Whistleblower Prot. Act (Gov. Code, § 8547, et seq.)? (2) What standard governs the determination whether the employee’s internal complaint has been “satisfactorily addressed” (§ 8547.12 (c)) by the California State University? Runyon v. Board of Trustees of California State University, S168950, B195213 (nonpublished opinion) review granted on 1/26/09. Update 2/3/10: Oral argument scheduled for 3/3/10.

Jurisdiction to Determine Right to Strike. Does the Public Employment Relations Board have the exclusive initial jurisdiction to determine whether certain “essential” public employees covered by Meyers-Milias-Brown Act (Gov. Code, §§ 3500 3511) have the right to strike, or does that jurisdiction rest with the superior court? City of San Jose v. Operating Engineers Local Union No. 3, S162647, review granted 6/16/08. Update 7/28/08: review granted in County of Contra Costa v. Public Employees Local Union One, S164640, formerly 163 Cal.App.4th 139, with briefing deferred pending the decision in City of San Jose. Update 10/13/08: Review granted in County of Sacramento v. AFSCME Local 146, S166591, formerly 165 Cal.App.4th 401, with briefing deferred pending the decision in City of San Jose. Update 8/19/09: The court requests the Public Employment Relations Board to serve and file an amicus curiae brief. Update 3/3/10: Oral argument set for 4/6/10. Update 3/4/10: Argument rescheduled, to be called and continued to the May 2010 calendar.

“Stray Remarks” Rule in Establishing Discrimination. (1) Should California law recognize the “stray remarks” doctrine, permitting the trial court in ruling on an MSJ to disregard isolated discriminatory remarks or comments unrelated to the decision-making process as insufficient to establish discrimination? (2) Are evidentiary objections not expressly ruled on at the time of decision on a MSJ preserved for appeal? Reid v. Google, S158965, formerly 155 Cal.App.4th 1342, mod.156 Cal.App.4th 424g, review granted 1/30/08. Update 3/30/09: Review granted in Heggnes v. Risley, S170374, and briefing deferred pending decision in Reid.

Insurance

Can an Insured Bring a §17200 Action Against Insurer? (1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, §17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action? Zhang V. S.C. (California Capital Insurance), S178542, formerly 178 Cal.App.4th 1081, review granted 2/10/10.

Application of Severability Clause on Claims of Negligent Failure to Stop an Intentional Act. Request under CRC 8.548 from the Ninth Circuit: Where a contract of liability insurance covering multiple insureds contains a severability clause, does an exclusion barring coverage for injuries arising out of the intentional acts of ‘an insured’ bar coverage for claims that one insured negligently failed to prevent the intentional acts of another insured?” Minkler v. Safeco Ins. Co., S174016, 9th Cir. No. 07-56689; 561 F.3d 1033, request for certification granted 8/12/09.

Multiple Insurance Policies Applied To Continuous Damage. (1) When continuous property damage occurs during the periods of several successive liability policies, is each insurer liable for all damage both during and outside its period up to the amount of the insurer’s policy limits? (2) If so, is the “stacking” of limits—i.e., obtaining the limits of successive policies—permitted? State of California v. Continental Ins. Co., S170560, formerly 170 Cal.App.4th 160, review granted 3/16/09.

Ability to Sue for Fraud in Inducing Settlement Without Returning the Money. After settling a first party claim by accepting money from and executing a release of the insurer, may an insured sue the insurer for fraud in inducing the settlement and seek to avoid the release without returning the money the insurer paid? Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co., S161008, formerly 157 Cal.App.4th 1416, mod. 158 Cal.App.4th 1241a, review granted 3/24/08.

Does Administrative Proceeding Constitute a “Suit” for Coverage? Does a proceeding before the United States Department of the Interior Board of Contract Appeals constitute a “suit” such as to trigger insurance coverage under a commercial general liability policy? Ameron Internat. Corp. v. Insurance Co. of the State of Pennsylvania, S153852, formerly 150 Cal.App.4th 1050, review granted 8/13/07.

Torts & Products

Duty of Care for a Big-Rig Driver Parked in “Emergency Parking Only” (1) Does a big-rig truck driver owe a duty of care to freeway motorists not to park for non-emergency reasons in an “Emergency Parking Only” area at the side of a freeway? (2) Was the driver’s act of parking in the “Emergency Parking Only” area not a substantial factor, as a matter of law, in causing plaintiff’s injuries in this case? Cabral v. Ralphs Grocery Co., S178799, formerly 179 Cal.App.4th 1, review granted 1/21/10.

Component Parts Defense in Asbestos Cases. Can the manufacturer of valves and fittings installed on Navy ships, and designed to be used with asbestos packing, gaskets, and insulation, rely on the “component parts” defense or related theories to preclude strict liability for asbestosis injuries years later suffered by seamen on those ships? O’Neil v. Crane Co., S177401, formerly 177 Cal.App.4th 1019, review granted, 12/23/09. Update 2/3/10: Review granted in Merrill v. Leslie Controls, Inc., S178957, formerly 179 Cal.App.4th 262, briefing deferred pending O’Neil.

Does A Product Misrepresentation Claim Create Standing Under The Unfair Competition Law? Does a plaintiff’s allegation that he purchased a product in reliance on the product label’s misrepresentation about a characteristic of the product satisfy the requirement for standing under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that the plaintiff allege a loss of money or property, or is such a plaintiff unable to allege the required loss of money or property because he obtained the benefit of his bargain by receiving the product in exchange for the payment? Kwikset Corp. v. Superior Court, S171845, formerly 171 Cal.App.4th 645, review granted 6/12/09.

Privette Application to Self-Employed Contractor. Do the limitations on a hirer’s liability for injuries to employees of subcontractors that were established in Privette v. Sup. Ct. (1993) 5 Cal.4th 689 and subsequent cases extend to claims brought by a self-employed independent contractor against a hirer for injuries sustained while doing contract work for a subcontractor? Tverberg v. Fillner Construction, Inc., S169753, formerly 168 Cal.App.4th 1278, review granted 2/23/09. Update 3/4/10: Oral argument set for 4/7/10.

Application of Recreational Use to Injuries Caused by Third Parties. Request under CRC 8.548 from the Ninth Circuit: Does California’s recreational land use statute (Civ. Code § 846), immunize a landowner from liability for acts of vehicular negligence committed by the landowner’s employee in the course and scope of his employment that cause personal injury to a recreational user of that land? Klein v. United States, S165549, 9th Cir. No. 06-55510; 537 F.3d 1027, request for certification granted 10/13/08.

ADR

Can the Court Reject a Pre-Dispute Agreement to Refer the Matter to a Referee? Does the trial court have discretion to deny a motion under CCP § 638 to refer a dispute to a referee in accordance with the pre-dispute agreement of the parties? Tarrant Bell Property, LLC v. Superior Court, S179378, formerly 179 Cal.App.4th 1283, review granted 2/18/10.

Are Attorney-Client Communications for the Purpose Mediation Protected Under Evid. Code §§1115, et seq.? (1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evid. Code §§1115 through 1128? (2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evid. Code §§1119(c) and 1122(a)(2)? Cassel v. Superior Court. (Wasserman, Comden, Casselman & Pearson), S178914, formerly 179 Cal.App.4th 152, review granted 2/3/10.

Can Arbitration Be Compelled Over Granting a Charter School Petition? Can a school district be required to arbitrate disputes over the granting of a charter school petition under the terms of a collective bargaining agreement, or does Education Code § 47611.5(e), preclude referring such a dispute to arbitration? United Teachers Los Angeles v. Los Angeles Unified School Dist., S177403, formerly 177 Cal.App.4th 863, review granted 12/23/09.

Application of Arbitration Agreement to Non-Signatory Heirs in Wrongful Death Claim. Are the non-signatory adult heirs of a patient bound by a physician-patient arbitration agreement to arbitrate their own wrongful death claims? Ruiz v. Podolsky, S175204, formerly 175 Cal.App.4th 227, review granted 10/14/09.

Enforceability of Mandatory Arbitration Agreement in Light of Proceedings by Labor Commissioner. Two issues are presented: (1) Can a mandatory employment arbitration agreement be enforced prior to the conclusion of an administrative proceeding conducted by the Labor Commissioner concerning an employee’s statutory wage claim? (2) Was the Labor Commissioner’s jurisdiction over employee’s statutory wage claim divested by the Federal Arbitration Act under Preston v. Ferrer (2008) __ U.S. __, 128 S.Ct. 978, 169 L.Ed.2d 917? Sonic-Calabasas A, Inc. v. Moreno, S174475, formerly 174 Cal.App.4th 546, review granted 9/9/09.

Judicial Review of Arbitration Decision/Restriction of Admin. Remedies. (1) What standard of judicial review applies to an arbitrator’s decision on an employee’s anti-discrimination claim under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) that is arbitrated pursuant to a mandatory employment arbitration agreement? (2) Can such a mandatory arbitration agreement restrict an employee from seeking administrative remedies for violations of the Act? Pearson Dental Supplies, Inc. v. Sup. Ct., S167169, formerly 166 Cal.App.4th 71, review granted 11/17/08. Update: 12/2/09: Oral argument scheduled for 1/7/10. Update: 12/23/09: The court invited the parties to file supplemental briefs addressing the following question: Was the arbitrator’s award subject to vacatur under CCP §1286.2(a)(5), on the grounds that the arbitrator’s failure to properly apply the tolling statute (CCP §1281.12) constituted “conduct of the arbitrator[] contrary to the provisions of this title” that substantially prejudiced the rights of a party? (CCP § 1286.2(a)(5).) Update 1/7/10: Cause argued, however submission was vacated pending completion of the supplemental briefing currently scheduled for 1/28/10. Update 2/8/10: Supplemental briefing having been completed, cause is submitted by order.

Required Disclosures by Arbitrator. (1) What is the scope of a neutral arbitrator’s required disclosures under CCP § 1281.9? (2) What is the proper standard of review of an order vacating an arbitration award based on an arbitrator’s purported failure to disclose grounds for disqualification? Haworth v. Sup. Ct., S165906, formerly 164 Cal.App.4th 930, mod. 164 Cal.App.4th 1605a, review granted 9/15/08.

Attorney-Related

Are Attorney-Client Communications for the Purpose Mediation Protected Under Evid. Code §§1115, et seq.? (1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evid. Code §§1115 through 1128? (2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evid. Code §§1119(c) and 1122(a)(2)? Cassel v. Superior Court. (Wasserman, Comden, Casselman & Pearson), S178914, formerly 179 Cal.App.4th 152, review granted 2/3/10.

Private Attorney General Attorney’s Fees. May an award of attorney fees under the private attorney general statute (CCP § 1021.5) be denied because the prevailing party had a significant non-pecuniary personal interest in the outcome of the litigation? Conservatorship of Roy W., S175855, A122896, (nonpublished opinion) review granted 10/22/09.

Ability of Public Entity to Retain Private Counsel for Abatement. May a public entity retain private counsel to prosecute a public nuisance abatement action under a contingent fee agreement? County of Santa Clara v. Sup. Ct., S163681, formerly 161 Cal.App.4th 1140, review granted 7/21/08. Update 9/22/08: Review granted in In re Red Light Photo Enforcement Cases, S165425, formerly 163 Cal.App.4th 1314, briefing deferred pending decision in County of Santa Clara.

Waiver of Conservatee’s Right To Be Present at Hearing Though Attorney. May a proposed conservatee's attorney, by making an unsworn statement to the court that the person did not wish to be present and did not object to the appointment of a conservator, waive the person's right to be present at the hearing on a conservatorship under the Lanterman-Petris-Short Act, although the report of the “officer providing conservatorship investigation” appointed by the county states that the person did not want a conservator? Conservatorship of John L., S157151, formerly 154 Cal.App.4th 1090, review granted 12/12/07. Update 12/2/09: Oral argument scheduled for 1/7/10. Update 1/7/10: Cause argued and submitted. Update 2/25/10: Opinion issued.

Damages

Can the Right to Punitive Damages Be Assigned/Transferred? (1) Is the right to recover punitive damages assignable if it arises from an assignable cause of action for property damage, and the property is itself also transferred? (2) If not, may the assignee nonetheless pursue punitive damages if the assignee is merely a continuation of the assignor in a different legal form? Nelson v. Exxon Mobil, S179122, formerly 179 Cal.App.4th 633, review granted 2/10/10.

Damage Enhancement for Seniors in B&P § 17200 Restitution Action? Is Civil Code § 3345, which permits an enhanced award of up to three times the amount of a fine, civil penalty, or “any other remedy the purpose or effect of which is to punish or deter” in actions brought by or on behalf of senior citizens or disabled persons seeking to “redress unfair or deceptive acts or practices or unfair methods of competition,” applicable in an action brought by senior citizens seeking restitution under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.)? Clark v. Superior Court, S174229, formerly 174 Cal.App.4th 82, review granted 9/9/09.

B & P 17200/Class Actions/Commercial

Can an Insured Bring a §17200 Action Against Insurer? (1) Can an insured bring a cause of action against its insurer under the unfair competition law (Bus. & Prof. Code, §17200) based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so? (2) Does Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287 bar such an action? Zhang V. S.C. (California Capital Insurance), S178542, formerly 178 Cal.App.4th 1081, review granted 2/10/10.

Is a Retailer Barred From Recording a Customer’s Zip Code for the Purpose of Finding the Entire Address? Does a retailer violate the Song-Beverly Credit Card Act of 1971 (Civ. Code, ? 1747 et seq.), which prohibits retailers from recording a customer's "personal identification information" when the customer uses a credit card in a transaction, by recording a customer's zip code for the purpose of later using it and the customer's name to obtain the customer's address through a reverse search database? Pineda v. Williams Sonoma Stores, S178241, formerly 178 Cal.App.4th 714, review granted 2/10/10.

Can a Consumer Sue a Retailer For Erroneously Charging Sales Tax? Does art. XIII, § 32 of the California Constitution or Rev. and Tax. Code § 6932 bar a consumer from filing a lawsuit against a retailer under the Unfair Competition Law (Bus. & Prof. Code §§ 17200 et seq.) or the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) alleging that the retailer charged sales tax on transactions that were not taxable? Loeffler v. Target Corp., S173972, formerly 173 Cal.App.4th 1229, review granted 9/9/09. Update: 11/19/09: Review granted in Yabsley v. Cingular Wireless, LLC, S176146, formerly 176 Cal.App.4th 1156, briefing deferred pending decision in Loeffler.

Class Actions for Refund of Local Tax. Does Gov. Code § 910 authorize a class claim for refund of a local tax, or must each putative class member file his or her own claim prior to the filing of a class action suit? Ardon v. City of Los Angeles, S174507, formerly 174 Cal.App.4th 369, review granted 9/9/09.

Damage Enhancement for Seniors in B&P § 17200 Restitution Action? Is Civil Code § 3345, which permits an enhanced award of up to three times the amount of a fine, civil penalty, or “any other remedy the purpose or effect of which is to punish or deter” in actions brought by or on behalf of senior citizens or disabled persons seeking to “redress unfair or deceptive acts or practices or unfair methods of competition,” applicable in an action brought by senior citizens seeking restitution under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.)? Clark v. Superior Court, S174229, formerly 174 Cal.App.4th 82, review granted 9/9/09.

Does A Product Misrepresentation Claim Create Standing Under The Unfair Competition Law? Does a plaintiff’s allegation that he purchased a product in reliance on the product label’s misrepresentation about a characteristic of the product satisfy the requirement for standing under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that the plaintiff allege a loss of money or property, or is such a plaintiff unable to allege the required loss of money or property because he obtained the benefit of his bargain by receiving the product in exchange for the payment? Kwikset Corp. v. Superior Court, S171845, formerly 171 Cal.App.4th 645, review granted 6/12/09.

Choice of Law – Out-of-State Workers in California. Request under CRC 8.548 from the Ninth Circuit: (1) Does the Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week? (2) Does Bus. & Prof. Code § 17200, et seq., apply to such the overtime work? (3) Does § 17200, et seq. apply to overtime work performed outside of California for a California-based employer by out-of-state plaintiffs if the employer failed to comply with the overtime provisions of the federal Fair Labor Standards Act, 29 U.S.C. § 207 et seq.? Sullivan v. Oracle Corporation, S170577, 557 F.3d 979, request for certification granted 4/20/09.

Is a Deliberate Effort to Thwart Spam Filters Actionable Under B&P Code 17529.5? Request under CRC 8.548 from the Ninth Circuit: Does sending unsolicited commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters constitute falsified, misrepresented, or forged header information under Bus. and Prof. Code § 17529.5(a)(2)? Kleffman v. Vonage Holdings Corp., S169195, 551 F.3d 847, request for certification granted on 1/6/09.

If Plaintiffs “Passed On” Overcharges to End Uses, Did They Suffer Damages? (1) When plaintiffs pay overcharges on goods or services due to anticompetitive conduct of defendant sellers but recover the overcharges through increased prices to end users, may defendants assert a “pass-on” defense and argue that plaintiffs were not injured because they did not suffer financial loss from the anticompetitive conduct? (2) Is restitution available under the Unfair Competition Law (Bus. & Prof. Code, 17200, et seq.) to plaintiffs who recovered from third persons the overcharges paid to defendants? (3) When plaintiffs recover from third persons the overcharges paid to defendants, have they suffered actual injury and lost money or property for purposes of establishing standing under the Unfair Competition Law, as amended by Proposition 64? Clayworth v. Pfizer, Inc., S166435, formerly 165 Cal.App.4th 209, mod. 165 Cal.App.4th 1290a, review granted 11/17/08.

Contract – Implied Warranties Against Public Agency. Must a contractor bringing a contract claim against a public agency based on the theory of breach of implied warranty prove intentional concealment of material facts? Los Angeles Unified School Dist. v. Great American Ins. Co., S165113, formerly 163 Cal.App.4th 944, review granted 9/15/08.

Real Property – Effect of Buyer’s Right to Revoke. (1) When a contract contemplates the sale of real property but provides that the buyer may revoke the contract at any time and for any reason before its efforts to obtain county approvals and permits are completed, is the agreement an option agreement that is unenforceable (and may thus be revoked by the seller) because there is no consideration for the option, or does the implied covenant of good faith and fair dealing sufficiently eliminate the buyer’s discretion to revoke so that the agreement is, in fact, a purchase agreement that may be enforced against the seller? (2) Did the trial court and the Court of Appeal err in declining to apply promissory estoppel where the buyer purportedly changed its position to its detriment in reliance on the seller’s promise to sell, or would it be inequitable to find an implied promise by the seller not to revoke the agreement? Steiner v. Thexton, S164928, formerly 163 Cal.App.4th 359, review granted 9/15/08. Update 1/6/10: Oral argument scheduled for 1/27/10. Update 1/27/10: Cause argued and submitted.

Appeals & Writs

Civil Procedure/Evidence/Discovery

Can the Court Reject a Pre-Dispute Agreement to Refer the Matter to a Referee? Does the trial court have discretion to deny a motion under CCP § 638 to refer a dispute to a referee in accordance with the pre-dispute agreement of the parties? Tarrant Bell Property, LLC v. Superior Court, S179378, formerly 179 Cal.App.4th 1283, review granted 2/18/10.

Does the “death knell doctrine” or the final judgment rule control after a demurrer is sustained? Did the “death knell doctrine” require plaintiff to immediately appeal the sustaining of a demurer as to class claims when the ruling resolved both individual and class claims, or did the one final judgment rule apply and require a single appeal from the subsequent entry of final judgment on all claims? Baycol Cases I and II, S178320, B204943 (nonpublished opinion), review granted 2/18/10.

Are Attorney-Client Communications for the Purpose Mediation Protected Under Evid. Code §§1115, et seq.? (1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evid. Code §§1115 through 1128? (2) Is an attorney a "participant" in a mediation such that communications between the attorney and his or her client for purposes of mediation must remain confidential under Evid. Code §§1119(c) and 1122(a)(2)? Cassel v. Superior Court. (Wasserman, Comden, Casselman & Pearson), S178914, formerly 179 Cal.App.4th 152, review granted 2/3/10.

Right to a jury trial in tax refund case? Does article I, section 16, of the California Constitution 3 accord a taxpayer a constitutional right to a jury trial in an action for a refund of taxes under Revenue and Taxation Code section 19382? Franchise Tax Bd. v. Superior Court, S176943, formerly, 177 Cal.App.4th 36, review granted 12/2/09.

Does a Discovery Stay Toll the Period to Bring the Matter to Trial? Does a stay of discovery constitute a stay of the action within the meaning of CCP § 583.340(c), such that the period during which discovery was stayed should be excluded in determining the time within which the action had to be brought to trial? Bruns v. E-Commerce Exchange, Inc., S172684, formerly 172 Cal.App.4th 488, review granted on 7/22/09.

Does Discovery Rule Apply to Non-Perpetrators Who Knew Of Abuse? Did the Court of Appeal err in concluding that plaintiffs were entitled to rely on the delayed discovery provisions of the statute of limitations (CCP § 340.1) for claims of childhood sexual abuse against specified non-perpetrators who knew of the abuse and had the ability to prevent it but failed to do so? Quarry v. Doe 1, S171382, formerly 170 Cal.App.4th 1574, review granted 6/12/09. Update 7/8/09: briefing in K.J. v. Roman Catholic Bishop of Stockton, S173042, formerly 172 Cal.App.4th 1388, was deferred pending decision in Quarry. Review in K.J. was previously granted on 6/29/09. Update 11/10/09: Review granted in both D.D. v. Roman Catholic Bishop of Stockton, S176451, C057260, and L.A. v. Roman Catholic Bishop of Stockton, S176483, C057895, briefing deferred in each pending Quarry. Update 2/3/10: Review granted in Doe v. Roman Catholic Bishop of San Diego, S178748, formerly 178 Cal.App.4th 1382, mod. 179 Cal.App.4th 1029a, deferred in each pending Quarry.

Statute of Limitations for Multiple Injuries. Request under CRC 8.548 from the Ninth Circuit: When multiple distinct personal injuries allegedly arise from smoking tobacco, does the earliest injury trigger the statute of limitations for all claims, including those based on a later injury? Pooshs v. Phillip Morris USA, Inc., S172023, 9th Cir., 561 F.3d 964, request for certification granted 5/18/09.

Is Deported Witness “Unavailable”? Did the trial court err in determining that a prosecution witness, who had been deported and could not be extradited to the United States, was unavailable within the meaning of Evid. Code § 240, or was the prosecution required to show further due diligence to establish the unavailability of the witness before introducing the witness’s prior testimony from the preliminary hearing? People v. Herrera, S171895, G039028 (nonpublished opinion), review granted 5/18/09.

Burden of Proof re Anti-SLAPP Exemptions/Lawyer Solicitation. (1) Which party bears the burden of persuasion with respect to the applicability of the anti-SLAPP exemptions set forth in CCP § 425.17(c)? (2) Does CCP § 425.17(c), exempt from anti-SLAPP protection an advertisement by a lawyer soliciting clients for a contemplated lawsuit? Simpson Strong-Tie Co. v. Gore, S164174, formerly 162 Cal.App.4th 737, mod. 162 Cal.App.4th 1542e, review granted 7/28/08. Update 2/24/10: The court invited the parties to file supplemental briefs addressing the following question: Does the anti-SLAPP exemption under C.C.P.§ 425.17(c), for a “statement or conduct . . . made in the course of delivering the . . . goods or services” of a person primarily engaged in the business of selling or leasing goods or services apply to any statement or conduct made in the course of delivering the person’s goods or services or only to a statement or conduct made in the course of delivering the person’s goods or services that “consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services”? Update 3/3/10: Oral argument set for 4/6/10.

Prevailing Party When Judgment Is Less Than Offset. When a plaintiff settles with one tortfeasor and goes to trial against another but obtains no additional recovery because the amount of damages awarded is less than the setoff amount based on the pretrial settlement, is that plaintiff nevertheless a prevailing party as a matter of law for purposes of an award of fees and costs under CCP § 1032? Goodman v. Lozano, S162655, formerly 159 Cal.App.4th 1313, mod. 160 Cal.App.4th 562e, review granted 6/16/08. Update 12/8/09: Cause argued and submitted. Update 2/4/10: Opinion issued.

Issue Preclusion Based on Investigative Findings. Request under CRC rule 8.548 from the Ninth Circuit: Should issue-preclusive effect be given to a federal agency’s investigative findings, when the subsequent administrative process provides the complainant the option of a formal adjudicatory hearing to determine the contested issues de novo, as well as subsequent judicial review of that determination, but the complainant elects not to invoke his right to that additional process? Murray v. Alaska Airlines, Inc., S162570, 522 F.3d 920, request for certification granted 6/16/08.

Res Judicata: Does Dismissal of Loss of Consortium Claim Bar Wrongful Death Claim? Did the doctrine of res judicata bar plaintiff’s claim for noneconomic damages in a wrongful death action after her husband died, because she had dismissed with prejudice a claim for loss of consortium while he was alive? Boeken v. Philip Morris USA, Inc., S162029, formerly 159 Cal.App.4th 1391, review granted 5/19/08. Update 2/3/10: Oral argument scheduled for 3/2/10.

Effect of Sister State Statute of Repose on Claim by California Resident. Does Oklahoma’s statute of repose bar a product liability action by a California resident against a boiler manufacturer arising out of the installation of a boiler in Oklahoma? McCann v. Foster Wheeler, S162435, formerly 160 Cal.App.4th 689, review granted 5/19/08. Update 8/12/09: The court requested the parties to file simultaneous letter briefs addressing the effect, if any, on the issue presented in this case of a new Oklahoma statute, enacted in May 2009, relating to the time for filing a cause of action for an asbestos-related claim. Update: 12/2/09: Oral argument scheduled for 1/7/10. Update 1/7/10: Cause argued and submitted. Update 2/18/10: Opinion issued.

Does Invalid Approval of Project Trigger Limitations Period? Was plaintiffs’ challenge to the approval of a Wal-Mart Supercenter project filed within the applicable statute of limitations on the theory that the approval was invalid and thus did not trigger the running of the limitations period? Stockton Citizens for Sensible Planning v. City of Stockton, S159690, formerly 157 Cal.App.4th 332, review granted 2/11/08. Update 1/6/10: Oral argument scheduled for 1/27/10. Update 1/27/10: Cause argued and submitted.

Preservation of Evidence Objections on MSJ. (1) Should California law recognize the “stray remarks” doctrine, permitting the trial court in ruling on an MSJ to disregard isolated discriminatory remarks or comments unrelated to the decision-making process as insufficient to establish discrimination? (2) Are evidentiary objections not expressly ruled on at the time of decision on a MSJ preserved for appeal? Reid v. Google, S158965, formerly 155 Cal.App.4th 1342, mod.156 Cal.App.4th 424g, review granted 1/30/08. Update 3/30/09: Review granted in Heggnes v. Risley, S170374, and briefing deferred pending decision in Reid.

Environmental

Can an Air Quality District Require the Use of Currently Non-Existent Technologies or Unused New Applications? (1) Does Health and Safety Code section 40440, which requires an air quality district to adopt rules requiring use of the “best available retrofit control technology” for air pollution, authorize the district to require technology that does not yet exist? (2) Is technology “available” if it exists and is being used for some, but not all, applications within a particular product category? National Paint & Coatings Assn., Inc. v. South Coast Air Quality Management Dist., S177823, formerly 177 Cal.App.4th 1494, review granted 1/21/10.

Limitations Period under Public Resources Code § 21167. What statute of limitations under Public Resources Code § 21167 applies after a public agency files a notice of determination stating that an entire project will not have a significant impact on the environment? Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, S163680, formerly 161 Cal.App.4th 1204, review granted 7/21/08. Update 12/8/09: Cause argued and submitted. Update 2/11/10: Opinion issued.

Effect of Existing Permit Limits on New Impact Report. In determining whether a project requires the preparation of an environmental impact report under the California Envir. Quality Act (Pub. Res. Code, § 21000 et seq.), is the maximum amount of emissions allowed a facility under an existing permit part of the baseline against which future environmental impacts should be assessed, even though (a) the facility’s current operations did not reach that level of emissions and (b) the level of emissions allowed by the permit had not been subjected to CEQA review? Communities for a Better Environment v. South Coast Air Quality Management Dist., S161190, formerly 158 Cal.App.4th 1336, review granted 4/14/08. Update 12/2/09: Oral argument scheduled for 1/6/10. Update 1/6/10: Cause argued and submitted.

Application of Clean Water Act to National Pollutant Discharge Elimination System permit. The court ordered further action in this matter deferred pending the United States Supreme Court’s final determination of Entergy Corp. v. EPA, No. 07-588, PSEG Fossil LLC. v. Riverkeeper, Inc., No, 07-589, and Utility Water Act Group v. Riverkeeper, Inc., et al., No. 07-597, which present issues concerning the application of § 316(b) of the Clean Water Act (33 U.S.C. § 1326(b)) to the issuance of a National Pollutant Discharge Elimination System permit. Voices of the Wetlands v. State Water Resources Control Bd., S160211, formerly 157 Cal.App.4th 1268, review granted 3/17/08. Update 4/1/09: U.S. Supreme Court issued its decision, Entergy Corporation v. Environmental Protection Agency (2009) ___ U.S. ___, 129 S.Ct. 1498, 173 L.Ed.2d 369. Update 9/9/09: The court ordered briefing on all issues. Justice Corrigan was recused and did not participate.

Civil Rights

Is LAX a Public Forum? Request under CRC 8.548 from the Ninth Circuit: (1) Is Los Angeles International Airport a public forum under the Liberty of Speech Clause of the California Constitution? (2) If so, does the ordinance at issue violate the California Constitution? Society for Krishna Consciousness v. City of Los Angeles, S164272, 530 F.3d 768, request for certification granted 8/11/08. Update 12/2/09: Oral argument scheduled for 1/6/10. Update 1/6/10: Cause argued and submitted.

Validity of California Constitution in Light of Federal Equal Protection. (1) Does article I, § 31 of the California Constitution, which prohibits government entities from discrimination or preference on the basis of race, sex, or color in public contracting, improperly disadvantage minority groups and violate equal protection principles by making it more difficult to enact legislation on their behalf? (See Washington v. Seattle School Dist. No. 1 (1982) 458 U.S. 457; Hunter v. Erickson (1969) 393 U.S. 385.) (2) Is § 31 preempted by the International Convention on the Elimination of Racial Discrimination? (3) Does an ordinance that provides certain advantages to minority- and female-owned business enterprises with respect to the award of city contracts fall within an exception to § 31 for actions required of a local governmental entity to maintain eligibility for federal funds under the federal Civil Rights Act (42 U.S.C. § 2000d)? (4) Did the Court of Appeal properly remand the case to the trial court to determine in the first instance whether the ordinance was required in order to maintain the local governmental entity’s eligibility for federal funds? Coral Const. v. City and County of San Francisco, S152934, formerly 149 Cal.App.4th 1218, review granted 8/20/07. Update 3/18/09: the court requested supplemental briefs on the first issue above, and (2) If yes, is § 31 narrowly tailored to serve a compelling governmental interest?

Taxation and Assessments

Right to a jury trial in tax refund case? Does article I, section 16, of the California Constitution 3 accord a taxpayer a constitutional right to a jury trial in an action for a refund of taxes under Revenue and Taxation Code section 19382? Franchise Tax Bd. v. Superior Court, S176943, formerly, 177 Cal.App.4th 36, review granted 12/2/09.

Can a Consumer Sue a Retailer For Erroneously Charging Sales Tax? Does art. XIII, § 32 of the California Constitution or Rev. and Tax. Code § 6932 bar a consumer from filing a lawsuit against a retailer under the Unfair Competition Law (Bus. & Prof. Code §§ 17200 et seq.) or the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) alleging that the retailer charged sales tax on transactions that were not taxable? Loeffler v. Target Corp., S173972, formerly 173 Cal.App.4th 1229, review granted 9/9/09. Update: 11/19/09: Review granted in Yabsley v. Cingular Wireless, LLC, S176146, formerly 176 Cal.App.4th 1156, briefing deferred pending decision in Loeffler.

Class Actions for Refund of Local Tax. Does Gov. Code § 910 authorize a class claim for refund of a local tax, or must each putative class member file his or her own claim prior to the filing of a class action suit? Ardon v. City of Los Angeles, S174507, formerly 174 Cal.App.4th 369, review granted 9/9/09.

Does Voucher From Designated Agency Constitute Conclusive or Prima Facie Evidence that Employer Is Entitled to Enterprise Zone Tax Credit? (1) When an employer claims an income tax credit under Revenue and Taxation Code section 23622.7 for wages allegedly paid to a “qualified employee” in an enterprise zone, does the certifying voucher obtained from a designated public agency constitute conclusive proof the employer is entitled to the tax credit? (2) If not, does the voucher constitute prima facie evidence that the employer is entitled to the credit and shift to the Franchise Tax Board the burden of proving that the employee was not a “qualified employee”? Dicon Fiberoptics v. Franchise Tax Bd., S173860, formerly 173 Cal.App.4th 1082, review granted 8/19/09.

Application Of Secret Voting Requirement to Special Elections to Access a Fee. (1) Does the secret voting requirement contained in article II, section 7, of the California Constitution apply to special elections conducted by local agencies pursuant to article XIII, section D, of the California Constitution, enacted by voters as Proposition 218, to assess a fee against property owners benefited by a particular project? (2) If so, was that secrecy requirement violated here, even though the District’s voting procedures were designed to ensure the secrecy of the vote, because the District failed to provide each voter with an individualized assurance that his or her vote would be held in confidence? Greene v. Marin County Flood Control & Water Conservation District, S172199, formerly, 171 Cal.App.4th 1458, review granted 6/26/09. Update 3/4/10: Oral argument set for 4/7/10; Werdegar. J is not participating, Raye, J., assigned justice pro tempore. Update 3/5/10: Baxter, J. is not participating, Reardon, J. assigned justice pro tempore.

Effect of Vesting Life Estate on Reassessment and Ability to Address Through Declaratory Relief. (1) Is the vesting of a life estate a “change in ownership” under Rev. and Tax. Code § 60 that triggers reassessment? (2) Was the taxpayer required to exhaust her administrative remedies by pursuing her claim with the Assessment Appeals Board before filing suit? (3) Was the taxpayer’s declaratory relief action barred by the prohibition in Rev. and Tax. Code § 4807 on actions to “prevent or enjoin the collection of property taxes”? Steinhart v. County of Los Angeles, S158007, formerly 155 Cal.App.4th 1082, review granted 12/12/07. Update 9/9/09: Phelps v. Orange County Assessment Appeals Bd., S174418, formerly 175 Cal.App.4th 448, with briefing deferred pending the decision in Steinhart. Update 10/29/09: Oral argument scheduled for 12/8/09. Update 12/8/09: Cause argued and submitted. Update 2/4/10: Opinion issued. Update 2/19/10: Petition for rehearing filed. Update 2/23/10: Time to consider rehearing extended to 5/5/10.

Validity and Implementation of Water Code § 1525. (1) Does Water Code § 1525, which was amended by the Legislature by majority vote in 2003 to impose annual fees on the persons and entities holding permits and licenses issued by the State Water Resources Control Board, impose an invalid tax or a lawful regulatory fee? (2) If §1525 is valid, may the Water Resources Control Board permissibly collect a fee levied on an entity which has sovereign immunity from a person or entity who has a contract with the immune sovereign? (3) If the statutory scheme is valid, but the regulations implementing it are invalid, did the Court of Appeal err in limiting refunds to only those persons and entities filing petitions for reconsideration before the Water Resources Control Board? California Farm Bureau Fed. v. California State Water Resources Control Bd., S150518, formerly 146 Cal.App.4th 1126, review granted 4/11/07.

Other

Standing to Sue for Corporate Misconduct That Induced Plaintiff to Retain Shares. Does plaintiff have standing to sue defendant for the diminution in the value of his stock resulting from corporate misconduct that allegedly induced him to retain rather than sell his shares? Kirnsk v. Chiron Corp., S174803, GIC878087, (nonpublished opinion) review granted 8/26/09.

Post-Secondary Education for Undocumented Aliens/Non-Residents. (1) Does Ed. Code § 68130.5, which authorizes undocumented aliens and other non-residents who attend and graduate from a California high school to pay in-state tuition for post-secondary education, violate 8 U.S. Code, § 1623 and/or § 1621? (2) Does § 68130.5 violate the federal rights of non-resident students in violation of the privileges and immunities clause of the 14th Amendment? Martinez v. Regents of University of California, S167791, formerly 166 Cal.App.4th 1121, review granted 12/22/08.

Community Property: Marital Interest in Service Credits Under California Public Employees Retirement System. When a married public employee covered by the California Public Employees Retirement System redeposits contributions withdrawn by a former spouse pursuant to an earlier dissolution so as to regain employer-subsidized retirement service credits, how is the marital community's interest, if any, in those premarital service credits determined? Marriage of Sonne, S166221, formerly 164 Cal.App.4th 1331, review granted 10/16/08. Update 12/2/09: Oral argument scheduled for 1/6/10. Update 12/23/09: Oral argument re-scheduled for 1/5/10. Update 1/5/10: Cause argued and submitted. Update 2/22/10: Opinion issued.

Waiver of Conservative’s Right To Be Present at Hearing Though Attorney. May a proposed conservatee's attorney, by making an unsworn statement to the court that the person did not wish to be present and did not object to the appointment of a conservator, waive the person's right to be present at the hearing on a conservatorship under the Lanterman-Petris-Short Act, although the report of the “officer providing conservatorship investigation” appointed by the county states that the person did not want a conservator? Conservatorship of John L., S157151, D048654 (nonpublished opinion) review granted 12/12/07. Update 12/2/09: Oral argument scheduled for 1/7/10. Update 1/7/10: Cause argued and submitted. Update 2/25/10: Opinion issued.